A Must Read from the Supreme Court of Ohio’s Board of Professional Conduct on Judges’ Obligation to Perform Same-Sex Marriages.

In Ohio, by statute, county court judges (which many of the larger counties no longer have), Municipal and Probate Court judges can perform civil marriages.

After the Obergerfell  decision came out, the Board of Professional Conduct of the Supreme Court of Ohio, which issues advisory opinions, received inquiries from some judges and a judicial association asking for guidance on the following two questions:

  1. Whether a judge who is authorized to perform marriages may refuse to marry same-sex couples based on personal, moral, or religious beliefs, but continue to marry opposite-sex couples;
  2. Whether a judge may decline to perform all marriages to avoid marrying same-sex couples.

Short answer: no, to both questions. Here’s the opinion syllabus:

A judge who exercises the authority to perform civil marriages may not refuse to perform same-sex marriages while continuing to perform opposite-sex marriages. A judge may not decline to perform all marriages in order to avoid marrying same-sex couples based on his or her personal, moral, or religious beliefs.

The 28 member Board of Professional Conduct, which issues ethics opinions, is appointed by the Supreme Court of Ohio. The Board is made up of lawyers, judges, and lay people.  Cincinnati Attorney Paul M. De Marco is the Board Chair.

Opinion Analysis

The opinion from the Board of Professional Conduct is based on the Judicial Oath of Office and a number of rules from the Ohio Code of Judicial Conduct.

Judicial Oath of Office

Each judge must take an oath before each term.  That oath requires the judge to support the Constitutions of the United States and of Ohio, and to “administer justice without respect to persons.”  From the oath, the Board concludes that “the personal, moral, and religious beliefs of a judicial officer should never factor into the performance of any judicial duty.” And since the U.S. Supreme Court held in Obergefell that the right to marry the person of one’s choice is a fundamental right under the Fourteenth Amendment, thus invalidating laws like Ohio’s restricting marriage to opposite sex couples, “a judge’s unilateral decision to refuse to perform same-sex marriages based on his or her own personal, religious, or moral beliefs ignores the holding in Obergefell and thus, directly contravenes the oath of office. ”

Pertinent  Rules of Conduct for Judges

Rule 1.1

Judicial Conduct Rule 1.1 requires a judge to comply with the law. “Law” includes the U.S. Constitution.  So, a judge’s refusal to marry same-sex couples, while continuing to marry opposite-sex couples, is contrary to the holding in Obergefell and is contrary to a judge’s duty to follow the law.

 Rule 1.2

This rule requires judges to “act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary.”  The rule also requires judges to avoid impropriety and the appearance of impropriety.

The Board concluded that public confidence in the judiciary is undermined “when a judge allows his or her beliefs concerning the societal or religious acceptance or validity of same-sex marriage to affect the performance of a judicial function or duty.”  Further, a judge who publicly states a personal objection to performing such marriages runs afoul of the rule against impropriety and the appearance of impropriety.

Rule 2.2

This rule requires judges to perform all duties without bias or prejudice.

“A judge who is willing to perform marriages of only opposite-sex couples because of his or her personal, moral, or religious beliefs, may be viewed as possessing a bias or prejudice against a specific class of people based on sexual orientation,” thus violating a core tenet of judicial office.

Rule 2.4

This rule requires judges not to be swayed by public opinion or fear of being criticized, and also not to let any outside interests influence the judge’s conduct or decisions.  The Board notes that a first principle of an independent judiciary is to follow and apply the law whether it is popular or not.

Impact on other functions or duties of judicial office

After discussing the pertinent rules of judicial conduct, the Board’s opinion further discusses some potential consequences of a judge’s decision to decline to perform some or all marriages.  For example, a judge who opts to perform only opposite-sex marriages may face disqualification in any matter in which sexual orientation is at issue, such as a domestic violence charge involving a same sex-couple.

Judges are also reminded not to let sexual orientation affect employment decisions, and must treat all persons in the court system with respect, regardless of any personal feelings about sexual orientation, and must ensure that the judge’s staff does so as well.

The Board’s opinion concludes with these very strong words:

“Finally, a judge should be cognizant of the impact a decision to decline to perform all civil marriage ceremonies has on the public’s perception of the judiciary. Regardless of whether the statutes authorizing the performance of civil marriages are deemed mandatory or permissive, the statutes reflect the legislative intent to grant citizens the opportunity to obtain a civil marriage from designated public officials. When all judges in a jurisdiction decline to perform civil marriages, regardless of the reason for their decisions, the public’s access to a fundamental right may be foreclosed or significantly limited. These decisions may reflect adversely on the judiciary as a whole.”

Read the full text of the opinion here.

Concluding Observations

Personally, I think this is a blockbuster opinion, even though it is nonbinding.  Many thought the Board would punt, and find that judges could decide to perform all marriages or none.  But that could be problematic, and kudos to the Board for not taking that route. Judges don’t get to pick and choose which laws to follow.   For example, many judges personally oppose the death penalty, but are obligated to follow the law of the land, which at the moment is that the death penalty is constitutional.

Recently, several newspapers reported that none of the judges in Guernsey County would perform any marriages.  The Clark County probate judge refused to have his name appear on marriage licenses.  And a Toledo Municipal Court Judge received much publicity for refusing to marry gay couples. This is troubling, and unduly burdens a fundamental right.  Judges are public servants, not arbiters of which laws they choose to follow.

Because the Board of Professional Conduct can only issue nonbinding advisory opinions, some judge or organization may well file a lawsuit to determine whether the judge’s statutory duty in Ohio to perform civil marriages is mandatory or discretionary.  That’s a legal question that the Board had no power to answer.  But still, even if that function is deemed discretionary, I think a legal decision will come out the same way as the Board’s opinion.



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